People v. Cato

TYLER, P. J.

In an information filed by the district attorney of the city and county of San Francisco, appellant Joseph Cato and one Hugh Ritchie were jointly accused of the crime of robbery, which act was alleged to have been committed on April 26, 1935. Appellant Cato was also charged with the prior conviction of a felony, to wit, a burglary alleged to have been committed on August 20, 1932. To the charge each defendant pleaded not guilty. Appellant Cato also denied that he had suffered the prior conviction of felony as charged. After trial, both defendants were found guilty on the robbery charge. No evidence was offered in support of the alleged prior conviction suffered by Cato. From the judgment rendered, and from an order denying a new trial, defendant Cato has appealed. No appeal has been taken by defendant Ritchie.

The pertinent facts show that about 10:30 in the morning of April 26, 1935, one Peter Murney, the manager of a restaurant and beer parlor located at 300 Howard Street, served defendant Ritchie with a glass of beer, which took Ritchie about twenty minutes to consume. During this period Murney delivered about $400 in checks to his wife for the purpose

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of having her cash the same at a bank. Upon his wife’s return Murney met her and received the money. There was evidence to show that defendant Ritchie saw the money and began to act in a strange manner. Murney went behind the bar and placed his money in a cash drawer under the register. Ritchie at this time finished his beer and walked around in a circle up to the end of the bar when defendant Cato appeared on the premises with a sawed-off shotgun in his hands. Cato commanded Murney and the customers to turn around and face the wall. Defendant Ritchie thereupon jumped over the bar and took the money from the cash register and put the same into his pocket. A third man appeared in the doorway with a pistol, which he pointed at Murney and commanded him to turn the other way. Defendant Cato then went through Murney’s pockets, after which the men left the place. Murney called the police and upon cheeking his accounts found that about $700 had been taken. Several days thereafter Murney identified Cato at the city prison as one of the robbers, and about a week later he also identified Ritchie. Two days after the robbery, Cato was arrested and $20 was found on his person. In an automobile registered in his wife’s name were found nineteen shotgun shells, and some rifle shells were found in his apartment. It was also shown that Ritchie had on the afternoon of the day of the robbery opened a bank account, depositing $165 in currency, and it further appeared that Cato and Ritchie a day after the robbery purchased an automobile, paying the sum of $155 as a down payment. After his arrest the police authorities asked Ritchie whether he knew defendant Cato, and he replied that he did not. Upon being further questioned he admitted knowing him and also the third man, who was later arrested at a house designated by Ritchie. Ritchie and Cato were both questioned concerning the shotgun, but each denied owning a sawed-off shotgun or having participated in the robbery, and both relied upon evidence tending to substantiate an alibi. In rebuttal the prosecution showed that on a previous occasion defendant Cato, at a time when Ritchie was also present, had a sawed-off shotgun in his hands when a crime was being committed. These are all the facts necessary to be stated for a discussion of the questions presented.